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Greetings, Court fans!

We have a guest author this week: former Wiggin and Dana attorney and current Fordham Law professor Christian Turner. As the only person at the firm who figured out how to print cases double-sided to save paper, we knew he was the person for the job given the two EPA decisions that just came down. As we’ll see, the Supreme Court handed both victory and defeat to the administration in these decisions and in a cert denial arising out of the military detentions in Guantanamo, but none of these outcomes may be permanent.

We begin with the global warming case, Massachusetts v. EPA (05-1120), in which a group of states (including Connecticut), local governments, and NGOs sued EPA after it declined to regulate motor vehicle carbon dioxide emissions. The case presented three major issues: (1) do the federal courts even have jurisdiction to resolve the case? (2) does EPA have the authority under the Act to regulate carbon dioxide emissions from new cars and trucks? and (3) even if EPA finds that these emissions are harmful, can it decline to regulate them on policy grounds? The Court split 5-4 in favor of the Petitioners, sending the case back to EPA for a specific finding as to whether carbon dioxide emissions endanger public welfare.

Justice Stevens wrote for the majority (which also included Justices Kennedy, Souter, Ginsburg and Breyer). As to jurisdiction, the issue was whether the Petitioners had standing to sue. Ordinarily, the Court requires litigants to show that they have suffered real and particularized injury, fairly traceable to the defendant and likely redressable by a favorable decision. The majority gave a couple of reasons why this test might be relaxed here. First, suits to enforce congressionally granted procedural rights may be heard even if the remedy is only the use of proper procedure rather than a different substantive outcome. Second, the Court should give states “special solicitude” because they lack full sovereign power to secure their rights and must rely on the federal government to protect their “quasi-sovereign” interests. With these thoughts in mind, the majority turned to the standard standing analysis and held that the Petitioners had standing because: (a) the harms caused by global warming, though widely shared, are “serious and well recognized,” even by EPA, (b) motor vehicle emissions contribute meaningfully to the problem, and (c) regulation of those emissions would help reduce the risks posed by global warming.

The Chief wrote the principal dissent on this issue, joined by Justices Scalia, Thomas, and Alito. In his view, “[t]he very concept of global warming seems inconsistent with [the particularized injury requirement].” Further, it was necessary to take a hard line on standing to stop the inquiry from becoming “utterly manipulable” and a “lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches.” He did not think that the elements were satisfied because, among other problems, global warming does not cause distinctive, personalized harms and regulating vehicle emissions would not be enough, on its own, to avert such harms.

The statutory questions concerned section 202(a)(1) of the Clean Air Act, which requires the EPA Administrator to promulgate “air pollutant” emissions standards for new motor vehicles if, “in his judgment,” these emissions contribute to air pollution that endangers public health or welfare. “Welfare” is specifically defined to include effects on weather and climate, and “air pollutant” is defined broadly (and confusingly) as “any air pollution agent or combination of such agents including [virtually ‘any’ substance] which is emitted into or otherwise enters the ambient air.” Given these definitions, the majority concluded that the statute “embraces all airborne compounds of whatever stripe.” (Justice Scalia wrote for the dissenters on this issue, arguing that greenhouse gases in the upper atmosphere do not pollute the ambient surface air that we all breathe; the majority responded that these gases both enter the ambient air and warm the atmosphere, so carbon dioxide is, indeed, an airborne compound that endangers public health and welfare.) The majority then distinguished FDA v. Brown & Williamson Corp., its 2000 decision blessing FDA’s refusal to regulate tobacco as a drug even though it met the statutory definition, by limiting that decision to cases where regulation would lead to extreme results (there, a total ban) that Congress did not intend.

Finally, on the issue of whether EPA could decline to regulate carbon dioxide emissions on grounds unrelated to whether they endanger public health or welfare, the Court said, simply, no. Once EPA makes an endangerment finding, the statute requires it to regulate notwithstanding any contrary priorities of the President, whether they be voluntary programs to reduce emissions or the preservation of his ability to negotiate with developing nations. So the majority sent the case back to EPA to decide whether the carbon dioxide emissions from new motor vehicles endanger public health or welfare: “If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.”

All was not bleak for EPA Monday, however, as its regulations were upheld in Environmental Defense v. Duke Energy Corp. (05-848). That case concerned two Clean Air Act statutory schemes that govern stationary pollution sources (like power plants) built or “modified” after the Act’s passage: the New Source Performance Standards (NSPS) and the Prevention of Significant Deterioration program (PSD). The NSPS provisions define “modification” as, basically, any change that “increases the amount of any air pollutant emitted” or that causes the emission of new pollutants; EPA regs interpret this definition to mean a change that increases the hourly emission rate of any pollutant. The PSD provisions incorporate the NSPS definition, but EPA nevertheless interprets “modification” differently for that program, requiring permits only for “major modifications” that increase a plant’s emissions above the prior two-year average. Duke had modified its plants in a way that managed to fall within the PSD formulation without changing its hourly emission rate, and the government argued that it needed a PSD permit first. Justice Souter wrote for a (more or less) unanimous Court that upheld EPA’s use of two different formulations. The Court first noted, in a section Justice Thomas did not join, that the same word may be given different meanings within the same statute. Congress clearly intended “modification” to be related in the PSD and NSPS provisions, but the Court noted that a general definition such as this one had been permissibly subjected to varying agency interpretations in prior cases. Here, nothing indicated that Congress intended identity in the “details of regulatory implementation,” so the only issue was whether EPA’s interpretations were reasonable, which they were. (Notably, all may not be lost for Duke. Ordinarily, a party must challenge regulations as exceeding statutory authority before the D.C. Circuit within 60 days of the regs’ promulgation; Duke did not do this, so it limited its argument to seeking a unified interpretation of the PSD and NSPS provisions. The Court, however, sent the case back to the Fourth Circuit, noting that it had not yet considered whether the 60-day limitation applied to Duke’s case. Duke just might get another bite at the apple.)

Also on Monday, in what has been described as a victory for the White House, the Court denied cert in Boumediene v. Bush and Al Odah v. United States (06-1195), where the Petitioners argued that they could bring habeas corpus challenges to their imprisonment at Guantanamo Bay despite the Military Commissions Act of 2006, which purported to deprive the courts of jurisdiction to hear such claims. (The Act was passed in the wake of the Court’s decision last term in Hamdan, which we summarized back in our July 4, 2006 Update). Justices Breyer, Souter, and Ginsburg dissented from the denial, arguing that the petitioners had made a plausible argument that the Act did not affect their constitutional habeas rights and that hearing these cases would be both just (if the Court found and ended unlawful imprisonment that is now in its sixth year) and wise (since even a ruling against the petitioners would bring clarity that would be useful in other cases). If there were found to be a constitutional right to habeas, the Court would then have to decide whether the procedure in the Detainee Treatment Act of 2005, providing for direct review in the D.C. Circuit, is a “constitutionally adequate substitute.” But, as the dissenters noted, that court has already indicated that prisoners at Guantanamo have no constitutional rights at all, so its review for “constitutional infirmities” in the military tribunals is of no use.

Emphasizing that they were not rendering an opinion on the merits, Justices Stevens and Kennedy wrote a separate opinion suggesting that: (a) there was no reason at this time to depart from the Court’s usual practice of requiring the exhaustion of available remedies before adjudicating constitutional questions, and (b) the Court has other means to take the case should the Government “unreasonably delay[] proceedings” or cause some other injury. “Were the Government to take additional steps to prejudice the position of petitioners in seeking review in this Court, courts of competent jurisdiction, including this Court, should act promptly to ensure that the office and purposes of the writ of habeas corpus are not compromised.” So the Administration’s victory may be short-lived (but then again, if everyone knew how Justice Kennedy would vote on the merits, they might have granted cert to begin with . . . .).

That’s it for Monday’s action. We’ll follow up shortly with two outstanding decisions and some cert grants from last week. Thanks for reading!

Kim & Ken (& Christian, with many thanks)

 

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400